DUI Attorney Response to “Stop and Spit”

A review of implied consent law by Ashley SchiavoneA Review of Implied Consent Law

With so much case law surrounding the Fourth Amendment and search and seizure issues, it’s hard to believe that DNA collection is happening in states like Florida and Connecticut when probable cause for a crime hasn’t even been established. Thankfully, Georgia hasn’t reached the point of “stop and spit,” but it’s worth taking a look at the main underlying issue in these types of searches.


Officers Can Search Your Vehicle

Even when an officer hasn’t reached a stage of probable cause, he can search you, your vehicle, and your home if you simply give consent. Consent is an exception to the warrant requirement under the Fourth Amendment and can trump and otherwise improper investigation if you don’t understand that you have the right to say NO. In the area of DUI, this issue has been addressed recently by our State Supreme Court and the U.S. Supreme Court as it relates to breath and blood testing. In Williams v. State, 296 Ga. 817 (2015), a case that made big waves in 2015, our Georgia Supreme Court found that when someone is read Implied Consent and agrees to take a state chemical test, the State has the burden of proving that their consent was actual and valid. Since then, defense attorneys across the state have been making several arguments as to why a simple “yes” to Implied Consent cannot be considered valid consent. The threat of a license suspension, absence of Miranda warnings, allegations of intoxication and the coerciv language of Implied Consent itself are all arguments that emphasize how someone cannot give valid consent under our current DUI laws.

Birchfield v. North Dakota

In the recent case of Birchfield v. North Dakota, 579 U.S.___(2016), the United States Supreme Court held that no warrant and no consent at all is needed to take a breath sample from DUI arrestees because a breath test is a “search incident to arrest.” (another exception to the Fourth Amendment warrant requirement). Georgia defense lawyers, however, are arguing that this case is unconstitutional and does not apply specifically to our state because it violates Georgia’s more expansive right constitutional right against self-incrimination by performing a compulsory act. In Georgia, you have the right not to incriminate yourself once you’re in custody and this covers both testimonial (statements) and real (acts) evidence. The idea is that giving a breath test is an act which may incriminate someone and they cannot be forced to do it without a warrant. Therefore, defense lawyers continue to argue, under the Williams case that the State must prove valid, actual consent whenever someone says “yes” to Implied Consent Law.

Remember, You Have Rights

The most important thing to remember is that you have rights. You have the right to say no whenever an officer asks to search you. You have the right to say no if an officer asks you to perform field sobriety tests. You have the right to say no if you’re read Implied Consent and asked to give a state chemical test.